Coalition: Proposed Repeal Of “Clean Water Rule” Is “Arbitrary And Capricious And Not In Accordance With Law,” EPA Administrator Pruitt’s Involvement “Illegal”

Attorney General TJ Donovan, part of a coalition of nine Attorneys General, challenged the Trump Administration’s proposal to repeal the 2015 “Clean Water Rule.” The 2015 rule defines “waters of the United States” under federal law to ensure that the nation’s lakes, rivers, streams, and wetlands receive proper federal protection. In comments addressed to the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (ACOE), the coalition argues that the proposed repeal is “arbitrary and capricious and not in accordance with law.” The coalition also charges that EPA Administrator Scott Pruitt’s involvement in the effort, after suing to void the Clean Water Rule as Oklahoma Attorney General, is “illegal” and would render any repeal invalid.

Click here to read the comments, which were led by New York Attorney General Eric Schneiderman and filed by the Attorneys General of New York, California, Maine, Maryland, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia.

The Clean Water Act only protects the “waters of the United States.” Supreme Court decisions in 2001 and 2006 led to substantial uncertainty as to whether some waters – particularly, small, seasonal, or rain-dependent streams, wetlands, and tributaries – are considered waters of the United States. Thus, roughly 20,000,000 wetland acres and 2,000,000 miles of streams in the Continental United States lost or risked losing their protections under the Clean Water Act. These at-risk streams help provide drinking water to 117 million Americans. Failing to protect these streams and wetlands also leaves these waters – and the downstream waters with which they connect – vulnerable to increased flooding, pollution, damage to hunting and fishing habitat, and fouling of the drinking water supplies.

To address these concerns, the 2015 Clean Water Rule clarified what types of waters are covered by the Clean Water Act. The Rule was based on over 1,200 peer-reviewed scientific studies that demonstrated how many waters are connected by networks of tributaries, intermittent streams, and wetlands. Because of this “interconnectivity,” physical, chemical, and biological pollution from wetlands and relatively small or infrequently-flowing upland streams often impact larger downstream waters, such as rivers, lakes, estuaries, and oceans. All the lower 48 states have waters that are downstream of other states and affected by pollution generated from upstream sources outside their borders over which they lack jurisdiction.

On July 27, 2017, the EPA and ACOE proposed to repeal the Clean Water Rule and reinstate the prior regulations – first adopted in 1977. These 40-year-old rules, based on dated science, led to years of confusing and inconsistent interpretations by agencies and federal courts. Once the repeal rule is finalized, the reinstated, outdated 1977 regulations could remain in place indefinitely.

In their comments, the coalition of Attorneys General argue, among other things, that the EPA and ACOE breached “foundational administrative law principles” by (i) failing to provide a meaningful opportunity for public comment on the substance of the proposed repeal rule; (ii) failing to consider the “well-known ambiguities and inconsistencies that result from applying the 1977 regulations”; and (iii) disregarding the extensive scientific and factual basis supporting the 2015 Clean Water Rule. Further, the coalition argues that Administrator Pruitt should have recused himself from the repeal rulemaking, given his vocal advocacy against the Clean Water Rule both during and after his tenure as Oklahoma Attorney General.

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